Hawks Push for Iraq War: The Rule of Law Prevents It

Obama Does Not Have the Authority to go to War Without Congressional Authorization

by Kevin Zeese / June 14th, 2014

The same people who got the US into the mistaken Iraq War are now urging President Obama to use military force in Iraq again. Republican hawks are using the violence in Iraq as a political tool that is escalating pressure for US military intervention. But, if the US follows the rule of law — both US and international law — the president does not have the authority to attack Iraq without Congressional and UN authorization.

John McMain went roaring onto the Senate floor “calling on the entire Obama administration national security team to resign.” McCain urged immediate action saying “Every hour the options become fewer and fewer as ISIS, the most radical terrorist group alive, sweeps across Iraq.” On the House side, John Boehner mocked: ““What’s the president doing? Taking a nap?”

Joe Cirincione, president of Ploughshares Fund, urges Obama not to get sucked into war and points out the current mess was the predictable result of the US invasion of Iraq. He points to the very first sentence of Tom Ricks’ 2006, Fiasco which warns, “President George W. Bush’s decision to invade Iraq in 2003 ultimately may come to be seen as one of the most profligate actions in the history of American foreign policy. The consequences won’t be clear for decades.” And the conclusion of the book predicts exactly what is happening today:

So while there is a small chance that the Bush administration’s inflexible optimism will be rewarded, that the political process will undercut the insurgency and that democracy will take hold in Iraq, there is a far greater chance of other, more troublesome outcomes: That Iraq will fall into civil war, or spark regional war, or eventually become home to an anti-American regime, or break up altogether. In any of these forms it would offer a new haven for terrorists.

Cirincione argues, in my view correctly, that renewing the war in Iraq would be another foreign policy blunder. The chaos in Iraq now was a predictable result of US military intervention and the US cannot correct this mistake with more war and violence. The United States has made a terrible mess out of Iraq. While we need to figure out how to make up for destroying the country, we also need to avoid any US military in Iraq which will make things worse.

Interventionists in Washington, DC are urging President Obama to use military force and claim he has the authority to do so. Steven T. Dennis wrote in the inside-the-beltway CQ News “President Barack Obama has the authority to wage war in Iraq without going to Congress, because the original use of force authorization remains in effect.” At a press conference on June 12, President Obama seemed to indicate he was open to that position saying he was “not ruling anything out” in Iraq. Later his press secretary clarified that Obama was only talking about aerial strikes, not troops on the ground. A day later, President Obama clarified further saying the US “is not simply going to involve itself in a military action in the absence of a political plan by the Iraqis that gives us some assurance that they’re prepared to work together.”

The Washington Postreports, the Pentagon’s press secretary, Rear Adm. John F. Kirby, told reporters Friday that “it’s important to remember that we have some 35,000 U.S. military personnel” already based in the Middle East region. Reportedly, Obama has ordered the Pentagon to develop a variety of military options. And, Secretary of State John Kerry said that a meeting had been held Thursday night about Iraq where a range of options was discussed, “including military action.”

The issue of whether the president has the authority to go to war is a critical one. Under Article I, Section 8, Clause 11 of the United States Constitution the power to take the nation to war resides in the Congress, not with the president. The drafters of the Constitution did not want to give that important power to one person. This is important because as Cirincione points out “The American public long ago decided that the Iraq War was a mistake, that Iraq is not worth fighting for. It is the Washington elite that doesn’t seem to have made up their minds.” If the issue of military action is debated in Congress it is very likely that the American public will be very clear in opposing the US going to war. Just as the public said ‘no’ to war in Syria, they will say ‘no’ to war in Iraq.

The White House has been vague regarding whether or not the president needs the US Congress to authorize the use of military force, CQ reports:

When asked about getting Congress’s permission to take action, Carney was noncommittal.

“We are in active consultation with members of Congress,” he said.

He demurred when asked directly about the 2002 resolution. An administration spokeswoman, Caitlin Hayden, told Yahoo in January that the administration supported repealing the Iraq AUMF.

A recent Congressional Research Service report says the authorization to use military force (AUMF) in Iraq had no expiration date and has not been repealed. Therefore it remains current law, “although its continued effectiveness is questionable.

However, this seems to be wishful war thinking by those who favor war. Anyone who reads the AUMF that authorized the Iraq invasion should see that the current situation does not apply. Here’s the language:

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) Authorization.–The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to–

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

It is a vast stretch to claim that Iraq poses any threat to the United States. Iraq does not have the capacity to threaten the United States. A change in government in Iraq does not change that basic reality. The US, with the most powerful military in the world history, is quite capable of defending itself against Iraq. Regarding the second clause, there are no current UN resolutions regarding Iraq that would authorize a military attack by the United States.

Beyond the US Constitution and domestic law, there is international law to consider. Attacking another country with military force is the gravest crime a country can commit. A military attack is only allowed if authorized by the United Nations or if a country is under direct attack. Neither is true in the current situation in Iraq.

It is evident to all, except those who want to go to war and refuse to follow domestic and international law, that President Obama needs the US Congress to act to authorize military force; and the United Nations needs to approve military intervention. If President Obama acts without these, he will be acting in violation of established law. Following the ‘rule of law’ may prevent the United States from involving the country in another illegal war and may prevent further destruction and chaos in Iraq.